Gujarat High Court
Amratji Chamanji Koli Thakore vs State Of on 19 June, 2013
Author: Akil Kureshi
Bench: Akil Kureshi
AMRATJI CHAMANJI KOLI THAKORE....Appellant(s)V/SSTATE OF GUJARAT....Opponent(s)/Respondent(s) R/CR.A/467/2009 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL NO. 467 of 2009 With CRIMINAL APPEAL NO. 491 of 2009 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE AKIL KURESHI and HONOURABLE MR.JUSTICE R.P.DHOLARIA ============================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ============================================================== AMRATJI CHAMANJI KOLI THAKORE....Appellant(s) Versus STATE OF GUJARAT....Opponent(s)/Respondent(s) ============================================================== Appearance: MS KRISHNA U MISHRA, ADVOCATE for the Appellant(s) No. 1 MR HL JANI, APP for the Opponent(s)/Respondent(s) No. 1 ============================================================== CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI and HONOURABLE MR.JUSTICE R.P.DHOLARIA Date : 19/06/2013 ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE AKIL KURESHI)
1. These appeals involve the same accused for similar but two separate offences punishable under Sections 363, 366 and 376 of the Indian Penal Code. Looking to the similarity of facts and evidence on record, as also considering the concession by the counsel for the appellant that she does not question the conviction recorded by the Sessions Court but only prays for reduction in sentences, we find it convenient to dispose of these appeals by this common judgment.
2. At the outset, we may record brief facts.
2.1. On 04.09.2006, the complainant and his family had gone for attending a marriage function. He had, thereafter, gone to his field to spend the night there. Early morning at about 5 O clock, his wife came there and informed him that at 4 O clock in the morning i.e. on 05.09.2006, she found that her daughter S. was not in her bed. On previous evening, the complainant had found his daughter talking to the accused. Upon inquiry, they found that the accused was also missing. The daughter was aged 13 years and 9 months as per her School Leaving Certificate on the date of the incident. An FIR of kidnapping was lodged before the Bhabhar Police Station on 12.09.2006. After about 10 or 12 days of this incident, the girl was brought back by the police. A few months later, on 02.01.2007, once again the daughter of the complainant was allegedly kidnapped by the same accused and FIR for this, was also lodged before the Police Station on the same day.
3. Sessions Case No.95 of 2007 pertained to the first FIR pertaining to the incident of 2nd September 2006. The learned Sessions Judge, in his judgment dated 28.01.2009, convicted the present appellant for the offences punishable under Sections 363, 366 and 376 of the Indian Penal Code. He sentenced the accused to 5 years R.I. for the offence punishable under Section 363 of IPC, 5 years R.I. for the offence punishable under Section 366 of IPC and 10 years R.I. for the offence punishable under Section 376 of IPC. He also awarded fine. Sentences were ordered to run concurrently.
4. Likewise, for the alleged incident of 2nd January 2007, Sessions Case No.100 of 2007 was conducted against the accused, in which, the learned Sessions Judge, under his judgment dated 28.01.2009, convicted the present appellant for the offences punishable under Sections 363, 366 and 376 of IPC. He awarded 5 years R.I. for the offence punishable under Section 363 of IPC, 5 years R.I. for the offence punishable under Section 366 of IPC and imprisonment for life for the offence punishable under Section 376 of IPC. He further provided that such sentences shall run concurrently and further that the sentence in both cases shall run concurrently.
5. Though the learned counsel for the appellant has, before us, not questioned the conviction of the appellant in both cases and confined her submissions to the sentence alone, even to consider the appropriate sentence, it would be necessary for us to briefly advert to relevant portion of the evidence on record. We may clarify that such reference to the evidence would be only for the limited purpose of sentencing.
6. In so far as the prosecutrix is concerned, her age has come on record in the form of her School Leaving Certificate, which had recorded her date of birth as 04.04.1993. On the date of both incidents, thus, she had not completed the age of 14 years. This proof of date of birth of the prosecutrix is not seriously in dispute before us. We have, therefore, proceeded on the basis that she was less than 14 years at the time of the incident.
7. In so far as the age of the accused is concerned, though there is no definite proof in the nature of any documentary evidence, in the police record, he was stated to be aged about 23 years on the date of the incident.
8. Though the prosecution has, before the Court below, tried to project the case as one of forcible kidnapping of the girl and forcible sexual intercourse on her by the accused, the evidence on the record suggests quite to the contrary. Firstly, for the first incident of 2nd September 2006, the FIR came to be lodged only on 12th September 2006. When the prosecutrix was sent for medical examination, she had given the history that she had herself run away from home. No one had brought any force or coercion. They were together with another couple, who had also eloped. However, the brother of the girl had called them to the hospital, where both these persons were caught by the police. They had stayed together for about 10 days during which period they had regularly cohabited. There was no force on her. Such history was duly recorded by the Doctor. Dr. Manojkumar J. Akhani P.W. 13 (Exh.33) who, in his deposition, also confirmed such history having been given by the prosecutrix. Further, in her deposition, prosecutrix P.W. 5 (Exh.17) in the cross-examination, agreed that in the night of the incident there were about 10 persons in her house. She was sleeping close to all of them. She had gone on the motorcycle with the accused. She sat behind him at which time also she had not tried to raise an alarm.
9. Likewise, in Sessions Case No.100 of 2007 the prosecutrix had given a similar history to Dr. Manojkumar P.W. 15 (Exh.37) in which, she had stated that no one had forced her. She herself had asked the accused to run away. Earlier also, the two had eloped but the police had brought her back due to which she had to run away again. She was pregnant since 2 months. They had gone to Ahmedabad and thereafter, to Deesa from where they were found. Dr. Manojkumar, in his deposition Exh.15, also stated that such history was given to him by the prosecutrix.
10. The prosecutrix P.W.4 (Exh.19), though had again tried to give a twist of being kidnapped forcibly in her deposition, in the cross-examination she agreed that they stayed near the bus stand at Khardosan village. There were many labours in the field nearby. She was shown the photographs of herself with the accused and she agreed that they were her photographs which were taken with her volition.
11. Two things thus immediately become clear. Firstly, looking to the age of the prosecutrix, the offences of kidnapping a woman to compel her into marriage and rape, are established. The other aspects clearly emerging from the record are that there was strong attraction between the prosecutrix and the accused. They were residing in the same village. The accused used to frequently visit her house. It was with the active encouragement and participation by the prosecutrix that the two eloped not once but twice. On 2nd September 2006 the two had run away from home. They were caught by the police about 10 days later and brought home. Once again, a few months later, on 2nd January 2007, when they got an opportunity, the couple eloped. We are conscious that the prosecutrix was aged below 14 years. Even if, therefore, she was removed from the custody of her guardian without any force or coercion, the offence of kidnapping, cannot be stated to be not proved. Equally so, the girl being less than 16 years of age, sexual intercourse even with her consent would constitute the offence of rape punishable under Section 376 of IPC. We are not for a moment suggesting that the accused was wrongly convicted for the said offences. What we are, however, trying to demonstrate is that the sentencing was harsh. We may recall that in the first offence the learned Sessions Judge awarded R.I. of 10 years for the offence punishable under Section 376 of IPC. In the second incident sentence awarded was imprisonment for life. It is true that Section 376 of IPC prescribes punishment, which ordinarily, would not be below 7 years and which may extend to life or imprisonment for either description of a term of 10 years. However, what sentence should be awarded in a given case and in particular whether the maximum sentence should be awarded, must depend on facts and circumstances of each case. In our opinion, this is certainly not a case where maximum punishment should be awarded. We say so for the following reasons:
(1) firstly, the evidence on record amply demonstrates that there was a love affair between the prosecutrix and the accused.
(2) secondly, there was no force or coercion exerted by the accused while removing the girl from the custody of her parents. It has in fact come on record that the girl herself had left her parent s house not once but twice.
(3) thirdly, the boy himself was in early twenty when the incident took place.
(4) fourthly, they two had moved from place to place and resided like husband and wife.
12. Under the circumstances, though we are inclined to uphold the conviction of the accused for all the offences in both the cases, in our opinion, this is a case where sentences are required to be reduced.
13. Learned counsel for the appellant drew our attention to a decision of Division Bench of this Court in Criminal Appeal No.1872 of 2006 in a case of Rajesh Gautambhai Meghval Solanki v. State of Gujarat, in which, looking to the fact that the girl was minor, the conviction was upheld. However, the sentence was reduced to 7 years R.I. for the offence punishable under Section 376 of IPC. In such decision, the Court had relied on earlier decision of Division Bench in a case of Thakore Tejaji Devaji & Ors. v. State of Gujarat [2006 (4) GLR 2807]. In this case the Court, while maintaining the conviction for the offence punishable under Section 376 of IPC, in view of the fact that the girl was aged below 16 years, reduced the sentence to 7 years R.I. from that of 10 years R.I. awarded by the trial Court considering that the accused himself was aged about 20 years at the time of incident. The Court observed as under:
16.
So far as adequacy of punishment is concerned, according to us, punishment imposed by ld. Trial Judge for the offences proved against accused No.1 Tejaji is harsh. When a technical rape has been established by the prosecution, there was no reason for the Court to impose the punishment which is more than minimum punishment prescribed. Age of accused No.1 Tejaji, according to us, at the relevant point of time i.e. on the date of commission of offence, is relevant when adequacy of punishment is required to be considered. A boy of about 19 to 20 years of age, if is attracted towards a young girl residing in the vicinity of his residence and if commits a criminal wrong, then the Court should look to such an accused with reformative eyes and should not become so harsh. The minimum punishment prescribed for the offence punishable under section 376 of IPC is R/I for 7 years. Seven years are very important years in the life of a young boy and, therefore, imposition of punishment of R/I for 7 years by itself shall have deterrent effect. So, we are inclined to reduce the substantive sentence of R/I for 10 years imposed by ld. Trial Court for the offence punishable under section 376 of IPC to the extent to R/I for 7 years. Similarly, amount of fine is also reduced to Rs.200/-, I/d to undergo S/I for 15 days for the offence punishable under section 376 of IPC instead of imposition of amount of fine of Rs.1000/- as ordered, so far as accused No.1 Tejaji is concerned. Substantive sentence imposed on accused No.1 Tejaji for other two offences i.e. offences punishable under section 363 & 366 of IPC is also altered and modified to the extent that accused No.1 shall under go R/I for 5 Years and to pay a fine of Rs.200/- I/d to undergo further S/I for 15 days for the offences punishable under sections 363 & 366 of IPC each. Similarly, the order of sentence sentencing the appellant accused No.1 Tejaji Devaji Thakor to undergo R/I for 3 years and to pay a fine of Rs.500/ (Rs. Five hundred only), I/d to further undergo S/I for 3 months for the offence punishable under section 380 of IPC is also hereby modified and altered to the extent that the appellant accused No.1 Tejaji Devaji Thakor shall undergo R/I for 3 years and to pay a fine of Rs.200/- (Rs. Two hundred only), I/d to further undergo S/I for 15 days for the offence punishable under section 380 of IPC. Substantive sentences are also ordered to run concurrently. The appellant accused No.1 Tejaji shall be required to pay reduced amount of fine as imposed and in default of payment of fine, obviously, he shall be required to undergo S/I for 15 days for each offence.
14. We are convinced that this is also a case where the sentences for offence punishable under Section 376 of IPC are required to be reduced to 7 years of R.I. in both cases. Such sentences shall run concurrently. Remaining portion of the judgment under challenge remain unaltered. In other words, the rest of the sentence as well as fine are not disturbed.
15. In the result, these appeals are disposed of in following terms.
The conviction of the appellant in both the Sessions Cases for the offences punishable under Section 363, 366 and 376 of the Indian Penal Code is confirmed. The sentences for the offence punishable under Section 376 of IPC are reduced to 7 years R.I. in both the cases. Such sentences shall run concurrently. Remaining portion of the judgment remain undisturbed. Both appeals stand allowed to above limited extent.
(AKIL KURESHI, J.) (R.P.DHOLARIA,J.) Jani Page 10 of 10